Remedies and Resistance

Abstract

Law mediates between the ideal and the real. American constitutional law, in particular, is a realm of idealization tempered by the claims of a resistant, unruly reality. This is an essay about the mediating nature of American constitutional law, the ambivalence built into an activity that aspires both to give meaning to ideals and to be effective in the real world. Inescapably, this dual aspiration affects both the interpretation of rights and the implementation of remedies when rights are violated, but this essay concerns remedies, the area of judicial activity that most clearly embodies the tension between the ideal and the real. The function of a remedy is to "realize" a legal norm, to make it a "living truth." While most legal theory concentrates on the ideal, the hard stuff of recalcitrant reality is equally important to jurisprudence. This essay looks towards a jurisprudence of the remedial—which in large measure must be a jurisprudence of deficiency, of what is lost between declaring a right and implementing a remedy. My immediate subject is the problem of fashioning judicial remedies for racial segregation in schools, in particular how the courts have faced the problem of white resistance to desegregation decrees. I focus on two moments. The first is 1955, when the Supreme Court of the United States declined to order the immediate desegregation of unlawfully segregated schools, approving instead the imperfect remedy of gradual desegregation under the standard of "all deliberate speed." The second moment is today, when the courts are considering responses to the phenomenon of "white flight," including the possibility of limiting integration remedies in order to encourage whites to remain within a desegregating school system. The intellectual and practical problem posed in each situation is whether and how the law should adjust its remedial aspiration in the face of a resistant reality—in particular, under what conditions and premises, if any, public opposition to a legal rule may properly be the basis for limiting judicial remedies for its violation. It may at first seem wholly illegitimate for courts to take account of resistance, since doing so appears to deny the very right that the court has affirmed. But, as I argue in this essay, resistance cannot be ignored. Among the difficulties—indeed, the anguish—necessarily endured by those seeking to produce change in the world is that at times they must cede ground because of opposition. Remedies for violations of constitutional rights are not immune from that reality.